Shouldn't Users Have Been At The Table For The Six Strikes Negotiations?

from the look-who-got-screwed dept

We've already discussed the "voluntary" agreement between ISPs and the RIAA/MPAA to create a "six strikes" (I still say the details show it's five strikes, but the internet has overruled me) graduated response plan. In particular, we've noted that the plan appears to limit defenses of users in ways that strike us as questionable (i.e., you can't even claim a work is in the public domain!). Now law professor Eric Goldman and the EFF's Corynne McSherry have put together an analysis of the agreement which highlights how unfortunate it is that this agreement was made completely without anyone representing actual users. It was just big companies, working together to effectively screw over users. The writeup by Goldman and McSherry highlights numerous problems with the agreement when it comes to users (including the fairly bogus "education" component of this project). But where it really shines is in showing just a few examples of where such an agreement could have been much better if there had been someone (anyone!) representing the interest of the users:

* The burden should be on the content owners to establish infringement, not on the subscribers to disprove infringement. The Internet access providers will treat the content owners’ notices of infringement as presumptively accurate--obligating subscribers to defend against the accusations, and in several places requiring subscribers to produce evidence “credibly demonstrating” their innocence. This burden-shift violates our traditional procedural due process norms and is based on the presumed reliability of infringement-detection systems that subscribers haven't vetted and to which they cannot object. (The content owners’ systems will be reviewed by “impartial technical experts,” but the experts’ work will be confidential). Without subscribers being able to satisfy themselves that the notification systems are so reliable that they warrant a burden-shift, content owners should have to prove the merits of their complaints before internet access providers take any punitive action against subscribers.

* Subscribers should be able to assert the full range of defenses to copyright infringement. A subscriber who protests an infringement notice may assert only six pre-defined defenses, even though there are many other possible defenses available in a copyright litigation. And even the six enumerated defenses are incomplete. For example, the “public domain” defense applies only if the work was created before 1923--even though works created after 1923 can enter the public domain in a variety of ways.

* Content owners should be accountable if they submit incorrect infringement notices. A subscriber who successfully challenges an infringement notice gets a refund of the $35 review fee, but the MOU doesn’t spell out any adverse consequences for the content owner that make the mistake – or even making repeated mistakes. Content owners should be on the hook if they overclaim copyright infringement.

* Subscribers should have adequate time to prepare a defense. The MOU gives subscribers only 10 business days to challenge a notice or their challenge rights are waived (a subscriber might get an extra 10 business days "for substantial good cause"). This period isn’t enough time for most subscribers to research and write a proper defense. Subscribers should get adequate time to defend themselves.

* There should be adequate assurances that the reviewers are neutral. The MOU requires that reviewers must be lawyers and specifies that the CCI will train the reviews in “prevailing legal principles” of copyright law – an odd standard given the complexity of, and jurisdictional differences in, copyright law. We’re especially interested in the identity of these lawyers, and why they are willing to review cases for less than $35 each (assuming the CCI keeps some of the $35 review fee for itself). Perhaps there will be a ready supply of lawyer-reviewers who are truly independent. Given the low financial incentives, another possibility is that the reviewers will be lawyers tied—financially or ideologically—to the content owner community. To ensure that the reviewers remain truly neutral, reviewer resumes should be made public, and checks-and-balances should be built into the reviewer selection process to ensure that the deck isn’t stacked against subscribers from day 1.

The chances of any of that actually happening? Yeah, basically none.

It's on this point that IP Czar Victoria Espinel should really be ashamed. After talking up how this agreement would help someone (not clear who?) "win the future," shouldn't she have been the least bit concerned about the most obvious stakeholder who wasn't at the table? We see this way too often with government officials these days. They think the only stakeholders are the businesses, and leave out the citizens they're supposed to represent. Copyright law is supposed to benefit the public, but the public wasn't at the table negotiating this agreement. In fact, pretty much everyone admits that the government focused solely on bringing together these two parties and putting tremendous pressure on the ISPs to cave to the entertainment industry. Couldn't they have used some of that "pressure" to make sure that the public's interest was included? Isn't that what government is supposed to do?

Misses the point

The point of the entire six strikes process is not to stop piracy or stop "copyright infringement". It's to punish the world for having the audacity to share! By proclaiming guilt until proven otherwise, you're paying up whether you like it or not. Even if it's $35. Everybody is guilty until they can prove themselves innocent by shelling out hundreds of thousands of dollars for defense attorneys to prove otherwise. This is part of the new way of the internet. It's the first stage. The second stage for the industry is to track each person, probably with tattooing a number on their forearms or tracking digitally with a personally identifying number that Obama wants to give everyone. I'm sure the third step is to place them in a centralized location so they can't fight back.

They can pick any IP address they want and accuse you of anything they want, and you're F*****! There is no defense. There is no safety net. You don't get to fight it or defend yourself until the fifth strike, and by then it's too late. Every politician, company owner, and representative who are on board with this might as well be wearing a black armband with a little symbol on it. Makes me freakin' sick.

It's the beginning of the end, peoples. We're all cattle, and our masters are coming to slaughter us until we bleed whatever money we have. I'll be investing my $35 in an anonymous VPN service, thank you very much.

Re: A lesson from the fictional future.

Since when does government actually do what it is supposed to do? Any position in government that has even a small amount of power is occupied by someone who scratched someone else's back. Its all about trading favors for favors and compromising ones values in the process.

The "public interest" is determined by corporate citizens, not average citizens.

Re: Let USERS have a say?

technically even career criminals will have payed some sort of taxes in their lives(ok not all of them) but if you pay taxes, then you should own a share in the governing process, but as it stands you(we the people) pay the saleries of the people who would steal more from us/punish us.

They think the only stakeholders are the businesses, and leave out the citizens they're supposed to represent.

You make it sound like the IP Czar was someone that we elected into that position, rather than the position's existence being purchased from the government by business and handed to her by President Accountability and the Transparency Brigade.

I don't recall any point where we had the choice in whether or not we even needed - or wanted - an "IP Czar", as though Ma Kettle downloading an mp3 of Josh Groban was an offense grand enough to warrant a government position being created on the same caliber as the "Drug Czar", in order to wage some grand war on infingement where the accused was presumed guilty at the very outset and the burden of proof was on the defendant to demonstrate otherwise at cost to them with the only valid defenses being pre-defined by the accuser.

The future is won.

Re: Make the content providers pay the $35

The whole idea of the $35 fee is to make you pay for the content you allegedly infringed, guilty or not. If you're innocent, they get $35. If you're guilty, they get $35. I can see this causing a lot of customers filing lawsuits against their ISPs. It's going to get ugly.

Re: Taxation without representation?

That whole taxation without representation line is a bit obscured. England was siphoning money out of the colonies by way of heavy taxes because of its debts to the Bank of England for the war with France. That's not all though. The colonists had developed a new interest-free money system, which they found made them quite prosperous in spite of England's turmoil. That pissed off the Banks, so they lobbied the King to outlaw it and drain the colonies of all their legal currency. This led to mass unemployment and poverty, which sparked the protests leading to the revolution.

This is more like extortion. If you don't say anything, you're guilty. If you want to challenge it, it's $35. If you fail, they keep the $35. If you win, they keep the $35.

"Isn't that what government is supposed to do?"

I get to hammer yet again that you simply don't grasp the nature of gov't, therefore your all your conclusions, and even questions, end up blatantly worong.

The US was the first country in history to explicitly tell The Rich who "own" the gov't where to get off and establish gov't as the Servant of the people. But it's a COMPLETE anomaly in history, NOT the norm as you sheltered children believe.

The current US citizens have forgotten the basics, because they've all enjoyed the blessings of liberty and didn't keep The Rich (= the gov't plus corporations) under tight control. Those with any foresight -- Ayn Rand, say -- predicted the current fascism at least 60 years ago.

So now Mike appears bewildered and complaining that ordinary people have no voice even in being able to use ISPs! I'm sure that Mike is against regulating corporations (look it up yourself, though: I'm not your search engine) as a plank in his "libertarianism" and that he has no objections to even monopoly, so he's basically just tricking readers here with a hot button story when his philosophy is to allow corporations "freedom" to conspire like this.

Re: Let USERS have a say?

Random thought

Once the ISPs implement this scheme, and people start getting kicked off the Internet, I am thinking that there may be a possibility of a class action antitrust lawsuit against the RIAA/MPAA for using their granted monopolies in a manner that imposes undue influence over contracts between the ISPs and their subscribers.

You would think that anti-trust laws would put a stop to this sort of thing, but instead the government facilitates this sort of conspiring behavior while misusing anti-trust laws against Google for doing nothing wrong.

When can I expect my broadband bill to go up?

As a result of this new system, many people will need to be hired, departments created and computer applications built. This will ultimately lead to an increase in prices. Once I see that, I will become the worlds greatest pirate. Since I assume this covers infringement of all kinds, as in music, movies and ebooks, I can pirate anything at will.

You think I am kidding but I am not. I do not pirate anything, not books, movies, music, software, etc. But if I start having to pay as if I am, well guess what, I will! If nothing else, I will resort to the good old fashioned sneaker net and stay off the internet pirate sites.

Pretty messed up

So let me get this straight. The content owners sat down with ISPs to decide how someone the content owners accuses of infringment can defend themselves? That in and of itself has to be illegal somehow.

Can you imagine that happening in other criminal cases? A guy that gets beaten up in an alley gets to decide how the people who assaulted him get to defend themselves. No you can't use eyewitness accounts, video/audio recordings, or alabies to defend yourself. And then upon conviction the victim gets a say in their punishment.

And also there's the fact that even if you succesfully defend yourself the content owners face no punishment whatsoever, while all the accused gets is their $35 back.

I get the feeling the ISPs will be mauled over this. The content owners need to realize that they can't ISPs to monitor the entire internet for then. This isn't a record store where you can watch everyone in the immediate area and keep an eye out for funny business. We're talking millions of people all over the country.

Re: "Isn't that what government is supposed to do?"

Pretty messed up

So let me get this straight. The content owners sat down with ISPs to decide how someone the content owners accuses of infringment can defend themselves? That in and of itself has to be illegal somehow.

Can you imagine that happening in other criminal cases? A guy that gets beaten up in an alley gets to decide how the people who assaulted him get to defend themselves. No you can't use eyewitness accounts, video/audio recordings, or alabies to defend yourself. And then upon conviction the victim gets a say in their punishment.

And also there's the fact that even if you succesfully defend yourself the content owners face no punishment whatsoever, while all the accused gets is their $35 back.

I get the feeling the ISPs will be mauled over this. The content owners need to realize that they can't ISPs to monitor the entire internet for then. This isn't a record store where you can watch everyone in the immediate area and keep an eye out for funny business. We're talking millions of people all over the country.

Re: "Isn't that what government is supposed to do?"

But it's a COMPLETE anomaly in history, NOT the norm as you sheltered children believe.

You are exactly right and the presentation they give at the US Constitution Center in Philly says the same thing. The problem isn't that we are sheltered, it is the rest of the world that is sheltered. We have seen the light and it is good.

But now the people have not kept the government in check. In many cases we seem to ask the government to take back our rights. I don't have an explanation for why that is, but I don't like it and I doubt many people here do either.

Re:

Oh, when did you vote for the IP Czar? When did you vote for this decision that most definitely violates all kinds of laws and human rights? When did you vote for the government to be able to say "Yeah, fuck the constitution"?

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.

All the ISPs got together and agreed that the price for contesting a claim was $35 a whack.

Re: Re: A lesson from the fictional future.

Well then, it would stand to reason that we should remove all incentive for corruption from government offices. This is a public service, not a tool for personal profit. Take the money and power for self-advancement out of the equation and you'll very likely see people who want to serve the public good more than people who want to serve themselves take the job.

Re: Re:

You vote for the IP Czar in the same manner that you vote for the leader of the FBI, CIA, and any other number of government agencies: You elect someone that will do things the way you want done, and hire the people that you want.

No, you don't get to vote on the IP Czar, but you picked his boss.

Actually, I voted for the government to apply the constitution, all of it, and not the parts that just make pirates happy.

Who they see as the criminals

They think the only stakeholders are the businesses, and leave out the citizens they're supposed to represent.

The reason for this is because the businesses see all, and I do mean ALL, citizens as the pirates/criminals. When you are trying to eradicate this group of people, why would you invite them to the table for talks.

What I see happening

What I see happening is that the ISPs will recieve notices, they will then issue strikes, people won't realize they've received said strikes, or won't think that its really all that big of a dael, so won't do anything about it. Millions of people will amass the five/six strikes and get booted off the internet. Online retailers will lose millions of customers do to inability to connect, causing billions of dollars in lost revenue. These online retailers will then file suits against the ISPs for said losses.

Meanwhile, because of all the people booted off the internet, the ISPs will lose millions in revenue that a mere $35 won't recoup, and will then turn around and file suit against the RIAA/MPAA for talking them into such a ridiculous scheme in the first place.

Online retailers will boost their prices to cover their losses and legal bills, ISPs will boost their prices to cover their losses and legal bills.

The citizens/consumers lose in the end. No matter what happens at this point, its a lose lose situation for us.

Re:

WHY did the ISP's agree to this?

Does it matter why the ISPs agreed to fix the price at $35 ?

It is not for the courts to determine whether in particular settings price-fixing serves an honorable or worthy end. An agreement, shown either by adherence to a price schedule or by proof of consensual action fixing the uniform or minimum price, is itself illegal under the Sherman Act, no matter what end it was designed to serve. That is the teaching of an unbroken line of decisions.

Per Se Violations. Price fixing, bid rigging, and market allocation are generally prosecuted criminally because they have been found to be unambiguously harmful, that is, per se illegal. Such agreements have been shown to defraud consumers and unquestionably raise prices or restrict output without creating any plausible offsetting benefit to consumers, unlike other business conduct that may be the subject of civil lawsuits by the federal government.

Limited Defenses. Because of their pernicious effect on competition and lack of any redeeming economic value, per se agreements, like price fixing, bid rigging, and market allocation, are conclusively presumed to be unreasonable and therefore illegal, without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. If a per se violation is shown, defendants cannot offer any evidence to demonstrate the reasonableness or the alleged necessity of the challenged conduct....

Elements of a Section 1 Offense. Criminal prosecution under Section 1 of the Sherman Act requires only the existence of concerted action in restraint of trade — specifically, an agreement among competitors to fix prices, rig bids, or allocate markets. The agreement must be between two or more independent business entities or individuals. No overt acts need be proved, nor is an express agreement necessary....

(Emphasis and italics in original.)

You think Attorney-General Holder is interest in upholding the law of the United States?

Misguided greed is promoting this attempt to pass this off as the rule of the land, usurping hundreds of years of constitutional laws that were enacted soley to protect civil liberties from personal, public and private groups as well as governments who would dare to tread upon due process and presumption of innocence. This is akin to the DMV violating 1st amendment rights to extort citizens for the priveledge of possessing a driver license. Inalienable Rights don't mean a thing if 'We the People' allow this anarchy to prevail as the cascading mindset, attempting to replace our Constitutional Laws with "No, they can't do that."

Re: Let USERS have a say?

Strike One for Obama's second term

That's strike one for Obama in his second inning. Can we impeach him after six strikes? First the removal of gun rights, now the removal of privacy AND due process in one fell swoop. Good thing he cut government spending so that he can reduce the deficit... oh right, he didn't. Socialism is coming and it's coming faster than we imagined!